BRODBECK: Why proposed Hydro payment to MMF was wrong

If you want to understand what’s behind the dispute between the Manitoba Metis Federation and the Pallister government regarding a proposed controversial payout that’s landed in court, you have to examine the facts behind several Supreme Court of Canada decisions.

Unfortunately MMF president David Chartrand ignored those facts and misrepresented the top court’s decisions in a recent opinion piece in the Winnipeg Sun.

Chartrand is, after all, a politician. And politicians sometimes like to spin information in their favour, especially when there are tens of millions of dollars at stake.

At issue is whether the Pallister government had the authority to cancel a proposed payment of $67.5 million the former Manitoba Hydro board planned to make to the MMF in exchange for a blanket agreement by the group not to oppose future Hydro projects.

Former Hydro chairman Sandy Riley said the proposed payment would have “bought peace in the valley for 50 years.”

The provincial government disagreed and rightly concluded the Crown corporation had no obligation to make such a payment. Riley and most of the board subsequently resigned.

The reason Hydro is not required to make such a payment is because while the Supreme Court has ruled that governments, or agencies on behalf of the Crown, have a “duty to consult” with First Nations and aboriginal groups when decisions and actions – like Hydro developments – might have an impact on aboriginal rights, including land, it does not mean governments are obliged to make blanket payments for perceived future actions.

The Metis are in a very different position from First Nations that have communal land and who can more easily demonstrate how a project or development might impact their lands. The Metis in Manitoba have no communal land base. Chartrand claims they do but he’s simply wrong on the facts. When Manitoba entered confederation in 1870, the federal government agreed to distribute land to the children of Metis families, under section 31 of the Manitoba Act. Ottawa bungled the process and took years to hand out the land, or scrip in lieu of land.

To right that historical wrong and to set the record straight, the MMF took the matter to court and sought declaratory relief on three issues. The top court rejected two of them but did agree to a declaration that the federal government “failed to act with diligence in implementing the land act provision.” However, the declaration did not require the federal government to take any specific action as a remedy. The Metis also made no claim for personal relief or damages and did not seek to have land restored, nor was any granted by the court. The court, in fact, found the Metis had no communal land base when the land grants were made in 1870.

“Neither the words of s. 31 nor the evidence establish a pre existing communal Aboriginal interest held by the Métis,” the court ruled. “Their interests in land arose from their personal history, not their shared distinct Métis identity.”

Nevertheless, government still has a duty to consult with aboriginal groups, including the Metis, the top court has also ruled in numerous other decisions. But it has to be on a case-by-case basis.

For example, the Metis might argue that even though they don’t own communal land, a Hydro project may infringe on one or more of their traditional hunting areas. If so, government has a duty to consult in good faith and to accommodate – perhaps even compensate – the Metis if they can demonstrate they’re being deprived of their hunting rights.

But the consultation and the accommodation has to be for a specific action, the top court held in 2010 in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council in British Columbia.

“The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights,” the court wrote. “Past wrongs, speculative impacts, and adverse effects on a First Nation’s future negotiating position will not suffice.”

Which is exactly why the proposed $67.5-million Hydro payout for some undisclosed future projects that may or may not have an adverse effect on Metis rights was completely misguided.

Chartrand may not like that reality. But that’s the law, as set out by Canada’s top court.

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